A single-judge bench of the Madras High Court comprising Justice R.N. Manjula rejected a petition since the materials available on record did not disclose the presence of the essential ingredients under Section 6(b) of the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply, and Distribution) Act, 2003.
Even though the accused was charged under Sections 353 and 506(i) IPC along with other offences under Sections 6(b), 24(2), and 7(1) of the COTP Act, there was absolutely no material in front of the court to make out the offence under Sections 353 and 506(i) IPC.
Brief Facts:
The case of the prosecution is that on 04.12.2017, the then Inspector of Police, T.P. Chathiram Police Station, on information went to Soul Garden Vegetarian Restaurant at No.86/59, New Avadi Road along with his police team and found a Hookah smoking spot in the name of “Sheesha”; on seeing the police team, the petitioners and others attempted to escape from the place of occurrence; they quarreled with the respondent and the respondent had to use minimum force to secure them; on inquiry, it was found that the petitioners and others without license allowed the public to smoke prohibited item namely Hookah; after the completion of the investigation, charge sheet has been filed against the accused for the offences under Section 6(b), 24(2), 7(1) of The Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply, and Distribution) Act, 2003 [hereinafter referred to as “COTP Act”].
Contentions of the Petitioners:
The learned counsel for the petitioners submitted that in order to make out a case for an offence under Section 6(b) of the COTP Act, there should be material to show that the sale of cigarette or other tobacco products to a person below the age of eighteen years and within a radius of one hundred yards of any educational institution. However, no such material was available. He further submitted that Section 7(1) of the COTP Act deals with restrictions on trade, commerce, production, supply, and distribution of cigarettes and other tobacco products without a pictorial warning as prescribed; but the facts of the case do not disclose the same. In fact, the prosecution itself has stated that they found a Hookah smoking spot in the name of “Sheesha”. Hookah is not prohibited. It is a by-product of tobacco. There are absolutely no ingredients to make out a case for the offences under Sections 353 and 506(i) of IPC and they have added just to exaggerate the case.
Contentions of the Respondent:
The learned Government Advocate (Crl. Side) appearing for the respondent submitted that the petitioners are involved in encouraging the public to smoke Hookah which is a tobacco product; the conditions prescribed under the COTP Act had been violated; the Soul Garden Vegetarian Restaurant is situated within one hundred yards from St. George Anglo Indian Higher Secondary School; since the materials on record can make out the offences for which the petitioners are charged, they should be subjected to the process of trial.
Observations of the Court:
The court observed that though it is stated in the F.I.R. that the accused were distributing banned tobacco products to the public, no statement from any public is obtained. The whole prosecution was based upon the alleged confession given by the accused and for which, the police party themselves stood as witnesses. Even in the seizure mahazar, no independent witness was seen to be available. None of the witnesses had stated the distance between the place of occurrence and nor had they mentioned that any educational institution is situated within a radius of one hundred yards. The court said that one of the essential ingredients to make out a case for an offence under Section 6(b) of the COTP Act is that the tobacco product ought to have been sold to a person, who is under 18 years of age and it should be in an area within a radius of one hundred yards of any educational institution. Further, the materials available on record did not disclose the presence of either of the ingredients. Even though the accused was charged under Sections 353 and 506(i) IPC along with other offences under Sections 6(b), 24(2), and 7(1) of the COTP Act, there was absolutely no material in front of the court to make out the offence under Sections 353 and 506(i) IPC.
The statement of the witnesses, especially the police witnesses showed that the accused had never prevented the police from executing their public duty or threatened them with dire consequences. Without producing any material to support or substantiate the charges, the charge sheet has been filed with bald averments and based on the confession of L.W.1 and hence, the court decided that the proceedings as against the petitioners are liable to be quashed.
The decision of the Court:
This Criminal Original Petition was allowed and the proceedings in C.C.No.1524 of 2019 pending on the file of the learned V Metropolitan Magistrate, Egmore, Chennai, were quashed against these petitioners.
Case Title: Ramasubramaniam and others vs the State
Coram: HONOURABLE MS. JUSTICE R.N. MANJULA
Case No.: Crl.O.P.No.32103 of 2019 and Crl.M.P.Nos.17637 & 17640 of 2019
Advocate for the Petitioner: Mr. R.C. Paul Kanagaraj
Advocate for the Respondent: Mr. A. Gopinath
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